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ArticlesOriginally published in Outdoor News on: August 16, 2002 - August 25,2002
Fishing for Privacy
Phillip J. Trobaugh
(email)
Mansfield, Tanick & Cohen, P.A.
1700 U. S. Bank Plaza South
Minneapolis, MN 55402
Tel: 612.339.4295
FAX: 612.339.3161
Maybe you are in your cozy fish shanty, enjoying a good evening of ice fishing with some friends on Mille Lacs, and suddenly you hear a hard rap on the door, followed by "Conservation Officer, please open up!" Must you allow the officer inside to inspect? Or perhaps you have been trolling on Leech Lake for Muskie in your 26 foot outboard and a Conservation Officer requests to inspect your catch on your boat. Should you allow her to?
Two recent Minnesota Court of Appeals cases have dealt with these important legal issues, which affects anglers. The results are important for you to understand regarding your rights as you enjoy fishing.
In State v. Krenz, a Conservation Officer approached a fish house situated on Cannon Lake, in Rice County. He knocked and identified himself, and entered the house without waiting for a response from the two men inside. The Officer asked to see one of the men's fishing license, which he was unable to retrieve. After the Officer saw a small pipe, the Officer asked the angler, now a drug suspect, where the marijuana was.
When the suspect denied that he had any marijuana, the Officer searched a tackle box and found a spoon with a white substance on it. The suspect said that it was baking soda. However, after retrieving containers, the Officer saw the other fisherman drop something down an ice hole; the men then admitted the substance in the containers was cocaine. One later admitted that the pipe belonged to him, and that he smoked crack cocaine with it.
In deciding the case, it was important to the Court that the Conservation Officer had no warrant, consent, probable cause, or an articulable basis for suspicion to justify his initial search of the fish house. The Court reasoned that the owner of the fish house had a reasonable expectation of privacy in the house because its four walls provided visual privacy for many lawful activities, and that his privacy cannot be invaded by an Officer's search without probable cause or a warrant. Probable cause is a legal term meaning "the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of crime will be found." The state argued that the warrantless search was reasonable because the Officer was enforcing fishing regulations for a licensed activity. The Court essentially said that fishing was not heavily regulated enough to justify a warrantless search.
The second case, State v. Colosimo, involved an attempted boat inspection by a Conservation Officer near Namakan Lake in St. Louis County, on the Canadian border. The boat's owner and a group of his friends towed their boat to a boat landing, after a day of fishing. Once they reached the landing, a Conservation Officer approached them and asked to see the fish they had caught. The boat's owner refused, demanding that the Conversation Officer explain why he had a right to detain and inspect his fishing boat. The Officer answered he did not need a reason, and ticketed the boat's owner.
Subsequently, the boat' owner was charged with refusing to allow inspection of a boat, and for obstructing an officer in his official duties. The district court dropped the obstruction charge, but found him guilty of refusing the officer's inspection. The court said that the Officer did not need a reasonable suspicion or warrant to inspect the fish in the boat which had already been stopped.
The Court of Appeals rejected the district court's interpretation, concluding that a boat owner has a reasonable expectation of privacy because the Fourth Amendment guarantees prohibiting unreasonable searches and seizures applies to Conservation Officers' boat inspections, regardless of whether the vehicle is stopped or not. Although the state argued that a boat owner's expectation of privacy could be limited when balanced against an Officer's need to regulate recreational fishing, the court relied on the reasoning from the fish shanty case to conclude that warrantless searches are not justified to enforce the regulatory scheme for recreational fishing.
Both the fish shanty and boat cases deal with the concept of privacy. Privacy can be found in many different laws, but in both of these cases, they dealt with the Fourth Amendment to the U.S. Constitution, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons of things to be seized.
Minnesota's State Constitution has a similar provision. Actions by the State, through agents such as Conservation Officers, are governed by the Fourth Amendment. This means the Conservation Officers must have proper grounds to search various "places," including fish shanties and "effects" like boats.
Minnesota also recognizes a "right to privacy" separate from the Federal and State Constitutions. This separate privacy right kicks in when privacy disputes occur between private citizens, or private citizens and businesses. Minnesota's privacy right is fairly new. It comes from a 1988 case involving a partially nude photograph of two people that had been shown around town by the employee of the photo lab where the photo had been developed. The Minnesota Supreme Court said that a person's body is a "privacy interest worthy of protection." The Court acknowledged the right to sue the store for damages based upon its alleged breach of privacy.
The fishing privacy that anglers enjoy does not automatically bar Conservation Officers from doing their jobs. It remains to be seen how the Department of Natural Resources will respond in terms of being able to inspect fish shanties and boaters. One issue anglers ought to be aware of is that the level of privacy for fish houses and boats are not the same.
Fish shanties, because of their resemblance to houses, provide similar privacy expectations as those of people in their own homes. This is in part what the Court decided. So, usually before a Conservation Officer has the right to inspect your fish house, the Officer must first obtain a search warrant. In order to obtain the warrant, the officer needs to be able to identify with some specificity the reasons justifying the search. A generalized need to search will not be enough. One exception to the need for a warrant is when a suspect flees inside a building while being pursued by law enforcement. In such a situation, a warrant will not be needed.
A boat is more like a car in terms of owners' privacy expectations. A warrant is not necessary to search the passenger portion of a car, but the Officer needs to have probable cause before she can search. For example, if the officer sees in plain view of the boat that too many fish are caught, that may give her probable cause to search the boat to determine if even more fish have been caught. Also, if the officer detects through sight or odor that an illegal drug is on the boat, she would have probable cause to search it further.
It is important for anglers to know what their privacy rights when fishing, what the law will allow, and what it will not. Privacy rights are not so broad as to stop all inspections. Likewise, the standard for allowing inspections has been clarified, and not all inspections may be allowed, given the rules from the fish shanty and fishing boat cases.
Phillip J. Trobaugh is an attorney with the law firm of Mansfield, Tanick & Cohen, and teaches privacy law at the University of Minnesota School of Law. Mr. Trobaugh enjoys fishing at Leech Lake whenever he can.
http://www.mansfieldtanick.com/CM/Articles/Fishing-For-Privacy.asp
